Judicial selection: does electing judges work?

Last week the Divisional Court gave judgment in the case of R (Miller) -V- Secretary of State for
Exiting the European Union, otherwise known as the Brexit Case. The
decision of the court was that the law requires Parliament to trigger the
notification of the UK’s intention to leave the EU using Article 50.

Obviously, those who campaigned on the basis that we should
leave the EU to hand sovereignty back to the UK Parliament are most upset about
the decision of the court that it is for the UK Parliament to make important
decisions like this one. Many of the same people who are super keen on Brexit
and who either don’t understand or choose to ignore what the case was about and
what the court said have been up in arms about it calling for changes to how
judges are appointed. In particular Daniel Hannan, Conservative MEP, who
confusingly seemed to call for elected judges but then told me on Twitter he
was in favour of “open confirmation hearings”, which I presume is something
similar to the US Senates role in approving a Presidential appointment to the
US Supreme Court.

So, does the system of electing judges work “pretty well in the
United States” as Mr Hannan claims?

So far as I can tell, only the USA elects judges directly by
popular vote. In Japan, supreme court judges are subject to a referendum to
remove them from office at the first general election following their
appointment and then every 10 years. In Switzerland, Federal Judges and their
deputies are elected by the Federal Assembly rather than by direct popular vote
of the electorate. Interestingly, anybody who is eligible to vote in a general
election is eligible to be voted in as a judge but in practice the body
responsible for nominating candidates chooses not to nominate those with no
legal qualifications, which I’m sure is a relief for the Swiss people.

In the UK, we have the Judicial Appointments Committee which
considers applicants and appoints judges, or at least makes recommendations to the
Prime Minister. People wishing to become judges can apply to the JAC, as they
would for any other job, and candidates are then subject to interviews and
testing prior to selections being made. Vacancies for judicial posts are known
as “competitions” and are extremely competitive with candidates often spending
huge amounts of money to attend training course in preparation for their application.
The system is a little different in the Supreme Court where a special panel
exists to decide on the new justice. The panel is made up of a member of the
Supreme Court, a non-lawyer and a member of the JAC as well as others. The Lord
Chancellor may give advice on the appointment and there is a requirement that
the new judge should have held high judicial office before (although, as with
Lord Sumption that rule can be waived where a candidate shows exceptional
ability at the Bar). The process of appointing a judge is open to scrutiny in
that the public can see who is making the decision and the criteria for
choosing the successful candidate but they are not privy to the reasoning. In
that way, it’s no different to the appointment of anybody else who applies for
a job.

To my mind, electing judges is a terrible idea from which no
good can ever come. If, for example, a judge is coming up for re-election and
has a difficult case before him. Is he going to decide it taking into account
what he thinks voters want or what is correct in law? Sandra Day O’Connor, a
former US Supreme Court Justice, noted that “no
other nation in the world [elects their judges] because they realise you’re not going to get fair and impartial judges
that way.” Worth saying, that in the USA, the Supreme Court Justices are
not elected.

“The more campaign contributions from business interests justices
receive, the more likely they are to vote for business litigants appearing
before them in court. Notably, the analysis reveals that a justice who receives
half of his or her contributions from business groups would be expected to vote
in favor of business interests almost two-thirds of the time.”

It’s clear in my mind that if judges are influenced by their
financial backers then that is not a recipe for justice being done. But,
financial backing isn’t the only way judges can be influenced. In 2010, Iowa’s
supreme court struck down a ban on gay marriage, leading to three members of
the court being targeted at the next election by those opposed to gay marriage
with half a million dollars spent to oust them from the court… and it worked
with all three judges losing their seats.

Then there was the case of Judge Steven Kirkland who found that
attorney George Fleming had overcharged clients by $13M and ordered him to pay
the money back! Unsurprisingly, Mr Fleming appealed but he also recruited
challengers to run against Judge Kirkland and funnelled tens of thousands of
dollars into their campaign funds. Judge Kirkland lost the election. He then
decided to contest another election to become a judge again. This time, Mr
Fleming lavished $90,000 on Kirkland’s opponent.

If you were a judge faced with a difficult case and you know
that if you go one way you might be attacked in such a way that you lose your
job, I don’t believe you can honestly say that wouldn’t play on your mind as
you reached your decision.

There’s another side to this as well. The use of mudslinging
tactics is becoming more prevalent in US judicial elections and no doubt would
do here as well. Judge Kirkland was criticised because he had previous
convictions for drink driving at a time when he was an alcoholic. Relevant?
Maybe, but the convictions and drink problems were both over thirty years old
and I’ve seen no suggestion they had any impact on his ability to carry out his
job as a judge. Other attacks on judges have included:

4.Judge Prosser was also accused of calling
another judge a “total bitch”;

5.Justice Janet Stumbo was on the receiving end of
a campaign video that used mug shots of two black criminals set against
pictures of (seemingly irrelevant to the ad) pregnant white women to suggest
that Stumbo sides with criminals – or possibly that she sides with black criminal
against white victims, you decide that one;

Ignore for a moment whether the claims made in these attacks
are true or false and think instead of the impression they give people in the
street of the judiciary. When judges are throwing insults at each other and undermining
other’s court decisions the only possible outcome is that the average person on
the street will see judges as just another type of politician and their respect
for judicial office holders will decline and with it will go confidence in the
justice system.

Once judges are seen as just another breed of politician who
are influenced by their financial backers and cowed by fear of their opponents
then people who need the law are less likely to go to law because they see that
judges are not there to help them. This is bad for justice and bad for the
rights of individuals.

If judges are not only perceived as being unduly influenced
by money and re-election, but actually are influenced by those things then it
is inevitable that they will start making decisions to appease their backers
and campaign groups who might fight against their re-election. In a fight
between a wealthy employer known to be politically active and a wronged employee,
who might the judge be inclined to side with I wonder?

Contrary to the claim of Mr Hannan, I think there is ample
evidence that not only do elected judges not work well in the USA but that they
can be detrimental to justice. Before I move on, I leave the last word on the topic
of elected judges to Justice Don Willet, an elected judge of the Texas supreme
court:

“I understand 100% the suspicion that donations drive decisions. That
skepticism siphons public confidence, and that's toxic to the idea of an
impartial, independent judiciary… I'd be shocked if people didn't look askance
at such a flawed system. I do, too, having had close-up experience spanning several
contested statewide races. Nothing would please me, or my wife, more than if my
last election were my last election, and between now and 2018, Texans would opt
for a smarter system.”

One final note on reform, because I am not opposed to reform
of the judiciary. In fact, I have long thought that our system of choosing
judges from barristers (and while solicitors can apply to be a judge, most judges
are appointed from the ranks of the Bar). The skills needed to argue a case and
be a good judge are not one and the same thing. Of course, there are overlaps,
but being a great advocate does not mean you will be a fantastic judge. If our
system were to be reformed, I would support a move to the French system of
professional judges who actually go into their careers wanting to be judges and
are trained to judge rather than being trained to talk.

Comments

Each state has their own rules for electing judges who try state-law offences (which is most of them, unless you cross a state border making it a federal offence).

Federal judges are appointed by the president, subject to congressional approval, and serve for life (or until they take senior status, aka retire). This is part of the judiciary that would try questions of the US-constitution, and as such they will have been appointed, so the question about them being elected does not arise (even in the US)

The USA does not elect any judges. In some, but not all, states some, but not all, judges are elected. Federal judges at all levels, District, Circuit and Supreme Court are appointed by the President subject to confirmation by the US Senate.

"In the UK, we have the Judicial Appointments Committee"No, the Judicial Appointments Committee appoints judges in England Wales. In Scotland Full-time salaried judges are appointed by the Queen on the First Minister’s recommendation. The Judicial Appointments Board for Scotland (JABS) handles these applications and makes recommendation for appointment. In Northern Ireland the Northern Ireland Judicial Appointments Commission (NIJAC) was established in June 2005, which is an an independent public body established to bring about a new system for appointing members of the judiciary in Northern Ireland, established under the Justice (Northern Ireland) Acts 2002 & 2004 which implemented the recommendations of the Northern Ireland Criminal Justice Review which flowed from the Belfast Agreement (1998).

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